The Friday Slot (4) – Richard Whish

For this fourth edition of the Friday Slot, Prof. Richard Whish has taken the time to address our questions. As everyone knows, Prof. Whish is the author of the ultimate EU competition book, a book with a big B which is a model of clarity and accuracy. Amongst other things, in this ITW, Prof. Whish takes distance with the dominant view on Tomra and TeliaSonera and alludes to encounters with mutant economists. Thanks to him for accepting to appear in the Friday Slot. A great honour for chillin’competition.

“Oscar” of the best competition law book? And of the best non-competition law book?

Well, obviously I cannot say Whish on Competition Law! I greatly admire Oke Odudu’s The Boundaries of EC Competition Law for incisive and original thinking and for in-depth research. On procedure there is nothing to match the series of essays written by Wouters Wils and published in a series of books since 2002. As for other books, where to start! I suppose if it had to be just one I would go for George Eliot’s Middlemarch for a view of all things English (good and bad). I am not aware of a finer character in literature than Dorothea Brooke.

“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

I very much liked the judgment of the Court of Justice in TeliaSonera, a view that is not widely shared, it would seem. To suggest that a margin squeeze cannot be an abuse in the absence of a duty to deal, to my mind, would emasculate Article 102 and to limit it to the control of monopoly rather than dominance.

Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU competition system. What would you do?

I wish that we could start over again on refusal to supply and on rebates. I am not a critical as some commentators about the current law in these areas, but I do think that it is difficult to explain quite how we got to where we now are. I have difficulties with Commercial Solvents, which is where the law on refusal to deal started: to what extent was the Court really concerned that Commercial Solvents had discontinued a customer who had become dependent upon it? The national laws on economic dependency do not, to my mind, qualify as ‘competition’ laws, but their existence has percolated into the competition rules.As for rebates, some of the judgments contain statements that suggest per se illegality, which cannot be correct. Tomra and Intel will be very important judgments on this: to what extent, I wonder, will the Commission’s Guidance document have an influence on the Courts dealing with those appeals?

A different point is that I think that changes are needed at the General Court as to the way that it conducts its review of Commission decisions: I am not thinking so much of the intensity of the review as the actual procedure.

Average working time/week?

I have just reread what Ian Forrester said in response to this question, and find that my answer is exactly the same. I quote him:

‘Excessive. I travel a lot, and when I am away the e-mails multiply, as do the messages from editors wanting manuscripts. But I am not complaining. It is fun to do interesting work in interesting places’.

Precisely!!

Why do you work in competition law? How did you first get into it?

When I was asked at school what I wanted to do at university I said ‘Economics’. My (very traditional) school thought that this was madness, and assured me that I should do law. I did so, and basically hated it, although I did quite well. When I went on to do a postgraduate degree I took a course called ‘Monopolies, Mergers and Restrictive Trade Practices’ (created by Sir Jeremy Lever), and that was when my career started – the point being, of course, it is law with economics.

Most interesting, intense or funny moment of your career?

I do not remember any interesting, intense or funny moments in my career …

Actually, I think that laughter is the most important safety valve that we have when dealing with high pressure, looming commitments and major responsibilities. I am rarely serious for more than about ten minutes at a time, which probably means that some people do not take me entirely seriously.

Your role model (if any) in the competition community? And outside of it?

As a young academic in the UK there would have been very little guidance on competition law and policy if it had not been for Valentine Korah at UCL. And she demonstrated to me, and many others, that an academic competition lawyer can have a major influence on the development of policy. A different point is that I have met so many highly intelligent, and very interesting and fun, people, literally all over the world though competition law. This gets us back to the answer to question 4.

What do you like the least about your job?

I will just quote Ian Forrester again:

‘The e-mail deluge, which never diminishes; airport security checks’.

What do you like the most about your job?

That is simple: the students that come to King’s to do the LLM or a PhD. They come, literally, from all over the world – after they leave the invitations to weddings, conferences etc. come in, and the hospitality is invariably wonderful.

What you like the most about economics in competition law?

When the law and economics come together and make sense.

What you like the least about economics in competition law?

Daft theories which fly in the face of reality. Economists with six hands (on the one hand, on the other hand, and on the other hand …)

What career/personal achievement are you most proud of?

Helping students to have the career in competition law that they want.

A piece of “counterfactual” analysis: what would you do if you weren’t in your current position?

When I still had a reasonable voice I would have loved to be a singer – opera if possible, otherwise lieder. Today – gardening for conservation (my garden is devoted to birds and butterflies).

Besides being a “competition geek” (sorry for this one, but we all are), what are your hobbies?

See the answer to question 13? I have recently planted 400+ trees, and have another piece of land that is twice as large where the planting possibilities are very exciting. Travel is wonderful (except that I always end up missing the garden). I cannot stop myself from going to India – I have just come back from my 40th visit. I also love watching opera in the great opera houses of the world – Andrea Chenier in Vienna last Saturday was wonderful.

Favorite movies?

Too many! Brief Encounter (Noel Coward); The Leopard (Visconti); Pasolini (except for Salo, which is unbearable); Almodovar; Bombay (Rani Matnam); and, of course, Mamma Mia, which is fantastic on a long-haul flight after two gins.

Favorite music style in general?

Wagner; Strauss (Richard!).

Your favorite motto?

Try to be like Dorothea Brooke (I made that up).

Websites that you visit the most (besides Chillin’Competition)?

DG COMP; OFT, CC; ICN; CAT – how sad! And the BBC (usually to ‘listen again’ to Radio 3).

A piece of advice for junior competition professionals?

There are (at least) two sides to every story; be patient; work hard; behave with the utmost integrity; don’t be arrogant. And laugh.

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4 Responses

“I very much liked the judgment of the Court of Justice in TeliaSonera, a view that is not widely shared, it would seem. To suggest that a margin squeeze cannot be an abuse in the absence of a duty to deal, to my mind, would emasculated Article 102 and to limit it to the control of monopoly rather than dominance.”

This really makes no sense to me. TeliaSonera is the worst judgment every written by the GC

Correction, I meant written by the ECJ. I don’t see why the conditions contained in Bronner for a refusal to supply infringement should not be met in a margin squeeze case. Margin squeeze is nothing but a constructive refusal to supply.

I would agree with Professor Whish on TeliaSonera (margin squeeze is important for the market equilibrium) and also with his commnents on refusal to deal and on the rebates. Does this make me a yes-man ??